The findings below are based upon the testimony of the witnesses who appeared at the hearing and the exhibits provided by the parties.

1. Illinois Power Company owns the Clinton Power Station in Clinton, Illinois.

2. Baldwin Associates is the general contractor responsible for constructing the Clinton Power Station. The parties have stipulated, and I find, that Baldwin Associates is an employer covered by the Act.

3. Baldwin Associates consists of two branches: (1) Construction; and (2) Quality and Technical Services.

4. The Quality and Technical Services branch is responsible for inspections. It consists of five divisions: (1) Technical Services; (2) Turnover; (3) Quality Engineering; (4) Quality Assurance; and (5) Quality Control.

5. The Quality Control division consists of several "groups," including (1) Civil; (2) Electrical; and (3) Piping

Mechanical. Each of these groups is staffed, in large part, by field inspectors whose responsibility is to verify that the construction work done at the power plant meets the specifications established by Sargent & Lundy, the plant's designer.

6. The Piping Mechanical group, in addition to field inspectors, is staffed by members of the Traveler Preparation Review Group ("TPRG"), whose responsibility is to review "travelers." A "traveler" is the paperwork associated with discrete elements of construction at the plant. A traveler gives building instructions to craftsmen and inspection instructions to inspectors. Some travelers deal with "hangers," which provide housing and support to pipes and other physical components of the power plant. Other travelers deal with "instrumentations."

7. When an inspector discovers work at the plant that does not meet specifications, he or she prepares a nonconformance report ("NCR"). If nonconforming work is repetitious or creates a significant problem, the Quality Engineering department addresses the problem through a Corrective Action Report ("CAR").

8. In April 1981, Cynthia Hale commenced employment with Baldwin Associates.

9. From 1981 to June 1985, when she was terminated, Hale worked as an inspector within several divisions and groups. She was appraised as an "average" employee in November 1983 and again in October 1984. She received letters of recognition and appreciation in May 1982, June 1982, October 1984, March 1985,and May 1985.

10. Sometime in 1981, Hale contacted the Nuclear Regulatory Commission ("NRC") with respect to a problem involving the storage of materials.

11. Sometime in 1982, Hale contacted the Nuclear Regulatory Commission with regard to her concerns involving Baldwin Associate's practice of marking certain materials at the Clinton Power Station with pink paint. This method of identifying materials was inadequate, Hale believed, because the requisitions identified material

by numbers, not colors. Hale observed that material marked by pink paint rather than a stock number could not be traced. There is no indication in the record that the NRC at this time acted upon Hale's concerns. Also, there is no indication that Baldwin Associates became aware of Hale's concerns prior to November 1984, when Hale reported the pink paint problem to the SafeTeam (discussed infra).

12. Sometime in 1982, the Nuclear Regulatory Commission contacted Hale with regard to an incident in which a foreman, angered by Hale's decision to report certain nonconforming work, kicked Hale in the back. So that the foreman would not be terminated, Hale reported the incident to company personnel as "horseplay." Baldwin Associates suspended the foreman for two weeks.

13. Sometime in 1984, Hale contacted the Nuclear Regulatory Commission with regard to inadequacies in the drawings supplied to inspectors by Sargent & Lundy, the Clinton Power Station's designer.

14. On February 3, 1984, Hale provided the Nuclear Regulatory Commission with information regarding the invalidation of nonconformance reports at the Clinton Power Station. As a result of this contact, the NRC conducted a "routine safety inspection" in June 1984. This inspection led to the discovery of a regulatory violation involving Baldwin Associate's failure to "follow-up outstanding document control transmittals as required by Baldwin Associates (BA) procedure BAP 2.0, paragraphs 5.4.4 and 5.4.5." On July 27, 1984, the NRC ordered Baldwin Associates to take corrective action. On July 5, 1985, after obtaining Hale's mailing address, the NRC thanked Hale for her cooperation in this matter.

15. Hale made no other contacts with the Nuclear Regulatory Commission prior to her termination. Subsequent thereto, Hale contacted the NRC with regard to her termination. There is no evidence of any action by the NRC in response to Hale's action.

16. On November 16, 1984, Hale contacted the SafeTeam, an independent organization created by Illinois Power

Company to which employees of Baldwin Associates could bring their safety concerns. As explained by Richard W. Greer, Quality and Technical Services Manager, the SafeTeam serves two purposes. "It is for one, in order to get the employee's concern out so that we can--we can resolve it," Greer testified. "And the other [purpose], you know, [is] just literally to give the employee a little more of a feeling that we really do want to -- we really do want to know what the problems are." Hale expressed the following concerns to the SafeTeam: (1) that pink paint was an inadequate means of marking materials; (2) that Baldwin Associates utilized an inefficient procedure for inspecting welded stud bolt holes; and (3) that Sargent & Lundy failed to include necessary drawings in its travelers.

17. Greer described the SafeTeam as "an independent outlet ... that is essentially confidential." Hale expected her contact with the SafeTeam to be kept confidential. On February 13, 1985, when the Director of the SafeTeam contacted Hale in response to her concerns, he referred to a "promise to do our best to preserve confidentiality." Despite this promise, the SafeTeam alerted Greer to the fact that Hale had raised concerns regarding the use of pink paint as a means of marking materials. The SafeTeam also reported to Greer that Hale Possibly was writing incorrect nonconformance reports. At that time, Greer was the Assistant Manager of Quality and Technical Services.

18. After learning of Hale's concerns regarding the use of pink paint, on December 28, 1984, Greer called Hale into his office. Greer had heard that Hale had threatened to keep the plant from getting licensed because of the pink paint problem. "So when I sat down to talk with Cindy," Greer testified, "I sort of went into the interview probably with a negative attitude thinking that, boy, here somebody that might be ready to, to create some problems here that is going to stop licensing the plant. And I thought that it was significant that in my interview with her, she really didn't come across that way at all. She just came across as a very, you know, concerned employee that wanted this addressed ...... Greer further testified that the meeting with Hale "alleviated my concern that somebody

was running around out there saying, 'I will stop the licensing of this plant.'" By letter dated March 8, 1985, Greer thanked Hale for her efforts to assure that all materials were properly controlled.

19. Greer initiated an investigation into the pink paint problem. The findings were incorporated into Corrective Action Report 222. During the next several months, proposed corrective actions were developed with respect to the problems addressed by CAR 222. Larry W. Osborne, who was Manager of Quality and Technical Services during this period and who made the decision to fire Hale, testified that he thought, at the time of Hale's termination in June 1985, that the pink paint issue was resolved, "...although I was aware that we hadn't completed all of the corrective action at that time."

20. After investigating the charge that Hale was writing nonconformance reports incorrectly, Greer reported to Judy Genaw of the SafeTeam on January 14, 1985 that the charge was unfounded.

21. On the same day (January 14, 1985), Hale was transferred from the Electrical to the Piping Mechanical division. Greer testified that the transfer was made because the Piping Mechanical division was short of inspectors at that time.

22. On February 11, 1985, Hale was recertified as a Level II Piping Mechanical inspector. (She had worked in the Piping Mechanical division as a certified inspector during an earlier period.) The duties of a Level II Piping Mechanical inspector included performing verifications of instrumentations.

23. At the beginning of April 1985, Hale was assigned to Fabrication Shop No. 1. Her primary responsibility was to verify the traceability of items produced in the shop. John Karl, the assistant quality control supervisor assigned to the second shift, was Hale's immediate superior.

24. On April 1 or 2, 1985, Roger Warfield was demoted from pipe fitter foreman in the fabrication shop to pipe fitter. Thereafter, according to Hale's testimony, Warfield resented the fact that Hale checked his work. Warfield also resented the facts that Hale did not personally stamp the fabricated items she checked (a pipe fitter helped her) and refused to answer the telephone in the shop office.

25. On April 5, 1985, Hale asked Warfield to place on a table some plates that he was carrying so that Hale could check the traceability markings. Warfield placed or dropped the plates on the floor. "You want to check them," Warfield stated, according to Hale's testimony, "get down there and check them." Hale walked away.

26. On April 6, 1985, Warfield complained to John Karl of what he considered to be Hale's lack of cooperation in the fabrication shop. Karl discussed the situation with Hale.

27. On April 16, 1985, Hale and Warfield had a disagreement relating to the traceability of certain nuts and bolts.

28. On April 17, 1985, Warfield told Karl that he was at the point of losing his temper with Hale and feared the consequences if he were to do so. Karl agreed to reassign Hale.

29. Karl discussed the situation with Hale. He told Hale that her reassignment was necessary. Hale inferred from Karl's remarks that Warfield had threatened her with physical harm. She told Karl that "this sounds like a matter for the NRC."

30. Thereafter, Hale testified, she felt unsafe in the fabrication shop due to Warfield's presence. On April 22, Hale made a formal complaint against both Warfield and Karl. She charged (1) that Warfield had threatened her with physical violence; and (2) that Karl also was guilty of wrongful intimidation by acceding to Warfield's improper request for Hale's transfer. Hale did not oppose a transfer; indeed,

she requested a transfer to the Electrical division. Karl did not effect the transfer, but instituted a system of rotation so that Hale would work in the fabrication shop only once every 7 working days.

31. On April 24, 1985, Larry Osborne, who was at that time the Manager of Quality and Technical Services, asked the law firm of Pope, Ballard, Shepard & Fowle to investigate Hale's charges. John Lashbrook, an attorney with that firm, conducted the investigation.

32. On April 29, 1985, Lashbrook submitted a report to Osborne. The report contained the following conclusion: "There was no wrongful intimidation, threat, or harassment of Hale by Warfield. Warfield tried to defuse a deteriorating, counterproductive personality conflict between Hale and himself by seeking her transfer. Nevertheless, Karl inadvertently handled the situation in such a fashion that would raise serious questions in the mind of a reasonable person in Hale's position as to (1) whether she had been indirectly threatened with physical harm, and (2) whether she was transferred for trying to do her job as a quality control inspector properly. However, Karl's conduct, although questionable from a managerial and organizational point of view, should not be considered deliberate wrongful intimidation."

33. On April 30, 1985, Osborne discussed the matter with Karl. In a memorandum to "File," dated May 2, 1985, Osborne wrote that he explained to Karl the need to minimize the chances of an inspector's perceiving supervisory actions as intimidation. According to the memorandum, Karl informed Osborne that he had been having trouble getting Hale to make traveler inspections since her removal from the fabrication shop. "She maintains that she needs more time to read procedures to properly prepare herself for making the inspections," Karl told Osborne, according to the memorandum. "This has been an on going problem for the past week."

34. In a memorandum dated May 1, 1985, Osborne wrote that "I believe that John Karl acted to remove Cindy Hale from the fab shop in the interest of separating her from a person with whom she has a personality conflict."

35. On May 3, 1985, Osborne met with Hale. He told her that she had not been intimidated and that he expected her to perform the work assigned to her by her supervisor. He also told her that she would not be transferred to the Electrical division. In a memorandum, Osborne described the meeting as follows: "During the interview, [Hale] seemed more interested in trying to take down word for word what I said rather than listening and talking about it. She made several comments to the effect that management cannot be trusted. She expected management to stick together and support Karl, [and thinks that] we (management) do not know what's going on." Osborne concluded in the memorandum that Hale was "on a 'crusade,' and is not ready to listen or consider anything I say except for the opportunity to take something out of context and use it to support her position."

36. On the same day (May 3, 1985), Osborne talked with Hale outside a construction trailer. Hale told Osborne that the situation had upset her so much that she had avoided going to the fabrication shop two days earlier by falsely claiming that she had left her Quality Control stamps and identification badge at home and therefore was unable to perform a particular inspection in the fabrication shop. Osborne was already aware of the incident, but had not been aware of Hale's lie.

37. Osborne subsequently asked Karl and Don Rogers, the nightshift supervisor, to keep him informed with respect to any problems that might arise involving Hale's not going back to work. Osborne testified that both Karl and Rogers later informed him that problems persisted.

38. Osborne asked Lashbrook to determine what Hale meant when she had told him that there were things that management did not know. On May 15, 1985, Lashbrook reported that Hale probably had been referring to Warfield's temper. Lashbrook also reported to Osborne that Hale had told him "that she would go to the fab shop as assigned and would not do anything to precipitate trouble with Warfield."

39. On May 17, 1985, Karl gave Hale a "hot" (high priority) instrumentation traveler. Hale told Karl that she did

not feel comfortable with the traveler because she lacked experience with instrumentation work. Karl assigned another inspector to help Hale. The work inspected by Hale required the writing of a nonconformance report. Karl asked Hale to stay late to finish the report. Hale refused. Another inspector cautioned Hale that "you can't tell your boss that you won't do something." Hale then agreed to stay late and write the report with Karl's help. During the evening, Hale told several inspectors that one should not be forced to perform work that one cannot handle comfortably and that she intended to notify someone outside the organization.

40. Although Hale finished writing the report, Karl reported the incident to Osborne as an act of insubordination. According to inspector Michael Cherry's testimony, Karl also asked Cherry, who had witnessed the incident, to prepare a written report "in case we had any further trouble with Cindy."

41. On May 22, 1985, Allan W. Lynch replaced Karl as Hale's supervisor. Lynch testified as follows:

    Almost immediately when I took over, I observed that [Hale] requested additional training far more than any of the other people. And that there were several instances that I would assign her work that she was certainly certified to do; but she informed me that she wasn't comfortable. Each and every time that Ms. Hale asked me for additional OJT, I complied with as soon as I could. I couldn't always immediately put her with somebody; but she was never requested to work something that she indicated that she wasn't comfortable with.

    Ms. Hale would initially accept the assignment. As--later on into my tenure on second shift, the--there was a frequency increase of work being returned. But oddly enough, the request for additional training

started to diminish. There were several instances when Ms. Hale would approach me and say that, "I don't feel comfortable about this traveler" and I would ask Ms. Hale, "What is it that you don't feel comfortable about?" And very rarely could she really give me a concrete or pinpoint one item. It was basically a generality.

    And to me it started developing a pattern. There [are] areas of that construction block that are extremely hot, extremely uncomfortable to get to; and sometimes extremely difficult to get to. And to me, there started showing a pattern that the lengthy inspection, although maybe not complex in nature that were physically difficult or unpleasant to do, these seem to be the type of work that was being returned.

    During our discussions about what don't you feel comfortable, very often it would--the discussion would reach a point where in my opinion, it was going to stop being discussions. It started turning into a confrontation; and at such times, I would break the conversation, return the work back to someone else, and try and get Ms. Hale another work assignment.

42. Michael Cherry, an inspector who worked on Hale's shift, testified that Hale "would take travelers and not work them."

43. On May 30, 1985, Hale interrupted a training session with several sarcastic remarks. Gloria Winn, who conducted the class, reported the incident to LaMar Palmer, Project Training Manager. Palmer sent a written report of the incident to Dean Arnold, Manager of Quality Control.

44. Palmer's report included the following excerpt: "Ms. Cynthia Hale's behavior during the class caused a considerable disruption to the point that tension developed in the room which hindered the needed question and answer portion of the class. Three people did not pass the post-test. This is the highest number of failures in a single class since we started fourteen months ago.... Please inform Ms. Hale that continued

behavior as described above will not be acceptable and she will not be allowed either to continue in class or to receive credit for classes should this continue."

45. Osborne received a copy of the report. Osborne testified that he told Lynch to tell Hale that "this kind of activity couldn't be tolerated."

46. On June 5, 1985, Lynch met with Hale. He told Hale that her classroom behavior was improper. He warned her that a recurrence of such behavior could result in disciplinary action.

47. On June 11, 1985, engineer Donald Kerwood gave information to Hale concerning CAR 222. As discussed supra, CAR 222 involved the pink paint problem. By memorandum, Kerwood informed Lynch and J.R. Moskwa, who was the Senior Piping Mechanical Supervisor and Lynch's immediate superior, that he had given information concerning CAR 222 to Hale. Kerwood's memorandum contained the following excerpt: "I wish to note that copies of CAR 222 ... are not generally in possession of the inspectors and training has not been extended in this area. Since the CAR 222 program is to be reviewed by the NRC, I feel this should be of great interest."

48. On June 12, 1985, Hale wrote a memorandum to Moskwa. The memorandum concerned problems involving the implementation of CAR 222.

49. As a result of Hale's memorandum, a meeting was held on June 13, 1985. Hale, Lynch, Arnold, Phil Simpson (Senior Quality Engineer), Kerwood and Edison Khoursader (an engineer) attended the meeting. Hale expressed her concerns regarding the implementation of CAR 222. The others agreed that Hale's concerns were legitimate and warranted corrective action.

50. Hale testified that if corrective action had not been taken, she would have taken her concerns to the Nuclear Regulatory Commission. At the meeting, however, Hale made no threats to go to the NRC.

51. After the meeting, Hale testified, she discussed the pink paint problem on several occasions with engineers. She testified that she kept a notebook on the problem. By the time of the hearing, the notebook had been lost.

52. On June 19, 1985, Hale submitted a checklist to Lynch for his review. Lynch noticed an error. When he brought the error to Hale's attention, Lynch testified, she became very defensive. Hale reinspected the work and changed her report.

53. On Saturday, June 22, 1985, supervisor Lynch was not present at the power plant. Inspector Michael Cherry was the acting supervisor.

54. During that evening, Cherry had difficulty locating a "hot" traveler. It was found on Hale's desk. Hale had held the traveler for approximately 1 1/2 hours without performing the work on the traveler. David Birch, the inspector who found the traveler, told Hale that it was "hot." Hale returned the traveler to technical assistant Becky Rutledge by throwing it on "the stack."

55. Cherry reassigned the traveler to Birch, who performed the work. Cherry did not discuss the incident with Hale. At the hearing, Cherry was asked why he did not confront Hale. "Well, she has the--she was always going--you know--threatening to take you to the NRC or something like this, you know, and it was just customary that all inspectors--we just, you know, the word was out just to leave her alone," Cherry stated. "Not that anybody put that word out, it was just between us [the inspectors]...."

56. On that same evening (June 22, 1985), Hale asked inspector Michael Beacraft how to handle a particular traveler. Beacraft explained to Hale that she would have to check a particular hanger 40-50 feet above the ground. One to two hours later, Hale asked Beacraft to handle a particular traveler for her. Beacraft agreed. He then discovered that it was the same traveler that Hale had questioned him about earlier in the evening. Beacraft performed the work.

57. Beacraft then wrote a letter describing the incident. There were no instructions from management that Hale should be watched, Beacraft explained at the hearing; he wrote the letter "[b]ecause I was upset at the time. I had to go do another inspector's work. I felt that my immediate supervisor should know about the problem that existed, and perhaps resolve it, and that it doesn't happen again."

58. On Monday, June 24, 1985, Beacraft gave the letter to Lynch.

59. On the same day, Birch complained to Lynch about the other incident of June 22 involving Hale. At Lynch's request, Birch put his complaint in writing.

60. Lynch then asked Beacraft to reinspect the checklist about which Hale had acted defensively on June 19, 1985. Beacraft discovered a nonconforming condition that Hale had not reported.

61. Lynch then arranged a meeting, which was held on June 25, 1985. The meeting was attended by Lynch, Osborne, Arnold, Lashbrook, Don Rogers, and Rich Campbell from Illinois Power. Lynch described the meeting as follows:

    Well, I informed the Manager of Q and TS that I had a situation--I had a problem with an employee. I explained to Mr. Osborne what I had gone through ... as far as the increased frequency of returning work and the decrease in requesting for additional training; and that this had reached a point that it was starting to be a source of dissension and animosity among my other inspectors. it was definitely having an influence on those people in my opinion. And I also presented Mr. Osborne with the information--the informal inspection that Mr. Beacraft had done on that hanger, with that information; and that something--something had to be resolved. That I felt that the situation could not go on.

    Mr. Osborne asked me, "Do you think that we should transfer Ms. Hale to Electrical?" And it certainly was no secret she desired that. And I said, "Absolutely not." That to me that would be shirking my supervisory

responsibilities. A problem exists, why send that problem to some place else. Get the problem resolved one way or another. That is not fair to the new department; and in a sense, it is really not fair to the employee in question also.

    I also stated to Mr. Osborne, I said, "I can't come in here and say, 'Terminate an individual'; but this is what I have. These are the problems I have. We have to reach some type of solution."

62. Osborne asked Lynch to prepare a written evaluation of Hale. He also directed a reinspection of the hanger inspected by Hale on June 19.

63. Lynch asked Beacraft to reinspect the hanger inspected by Hale on June 19. Beacraft discovered some nonconforming conditions not reported by Hale.

64. Lynch prepared the report requested by Osborne. In it, he stated that Hale was not comfortable with certain assignments and would request on-the-job training. "Ms. Hale's tendency to refuse work on this basis has been increasing steadily," Lynch wrote, "while her requests for OJT have not." Lynch mentioned the training session incident of May 30, 1985. Hale's work reflected "an increasing frequency of errors," Lynch wrote. "I attribute this to lack of attention to detail. This lack of attention has resulted in reinspections, and numerous corrections. I feel that Ms. Hale has been given ample opportunity to assimilate the training needed to properly perform her duties and is unable or unwilling to do so." Lynch attached Hale's daily activity sheets to the report. "These sheets," wrote Lynch, "reflect a great deal of time being spent on procedural reading and O.J.T. functions."

65. On Wednesday, June 26, 1985, Osborne received Lynch's report together with memoranda describing the incidents of June 22. "I decided that Hale had not gone back to making the inspections as I instructed her to, and that she was disrupting the other inspectors," osborne testified, "and I decided to terminate her employment." When asked why he did not wait until Hale's projected

layoff date in September 1985, Osborne explained his decision as follows: "Because that was a critical phase of the project where we were trying to wrap things up. Manpower was going down. People were quitting, so on and so forth. Her activities out there and lack of activities had started to disrupt the rest of the organization, and I believed that it was impacting the inspections that we were making as the Piping Mechanical group, and for that reason, I could not tolerate another three months of it."

66. Osborne testified that he informed Lynch of his decision at about 4:30 p.m. He left instructions as to what next was to be done.

67. On the same day (June 26, 1985), Hale made a sarcastic remark at a training class regarding the fact that inspector Dennis McCay's name had not appeared on the attendance sheet for such classes for several months. Attendance at classes was mandatory; for this reason, it was important that inspectors sign the sheet. Hale remarked that McCay would probably report the situation to the Nuclear Regulatory Commission when he ultimately was laid off. Osborne testified that he did not learn of this incident until after Hale's termination.

68. On June 27, 1985, at the beginning of the shift, Lynch told Hale to go to Arnold's office. Reading from a termination slip, Arnold told Hale that she was being terminated because she was "[u]nable to perform assigned duties." Arnold and Lynch then escorted Hale to the SafeTeam.

69. Osborne ordered a reinspection of Hale's post-May 1, 1985 work. On August 7, 1985, Arnold reported to Osborne that the reinspection provided "reasonable assurance ... that the overall quality of [Hale's] work [had been] acceptable." On August 8, 1985, Osborne informed W. Connell, Manager of Quality Assurance, that he was "satisfied that the quality of Hale's work was satisfactory." Osborne also reported, however, that the reinspection demonstrated that Hale's production had been inadequate.

70. On August 13, 1985, CAR 222 was closed.

    Section 210(a) of the Energy Reorganization Act provides:

    No employer, including a Commission licensee, an applicant for a Commission license, or a contractor or a subcontractor of a Commission licensee or applicant, may discharge any employee or otherwise discriminate against any employee with respect to his compensation, terms, conditions, or privileges of employment because the employee (or any person acting pursuant to a request of the employee)-

    (1) commenced, caused to be commenced, or is about to commence or cause to be commenced a proceeding under this chapter or the Atomic Energy Act of 1954, as amended, or a proceeding for the administration or enforcement of any requirement imposed under this chapter or the Atomic Energy Act of 1954, as amended;

    (2) testified or is about to testify in any such proceeding or;

    (3) assisted or participated or is about to assist or participate in any manner in such a proceeding or in any other manner in such a proceeding or in any other action to carry out the purposes of this chapter or the Atomic Energy Act of 1954, as amended.

    In Dartey v. Zack Company of Chicago, 82-ERA-2 (1983), the Secretary described the evidentiary burdens borne by each party under Section 210. Applying Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981) (a discrimination case arising under Title VII of the Civil Rights Act of 1964), the Secretary stated that the employee bears the initial burden of establishing a prima facie case of discrimination. The burden then shifts to the employer to offer legitimate, nondiscriminatory reasons for the adverse action taken against the employee. If the employer

is able to offer such reasons, the employee must demonstrate that the reasons are pretextual. If the trier of fact concludes that both legitimate and prohibited reasons motivated the employer to take adverse action against the employee, the burden shifts again to the employer to demonstrate that the adverse action would have been taken even in the absence of the employee's protected conduct.

    The Secretary in Dartey also described the elements of a prima facie case. Under the Dartey test, an employee may satisfy the initial burden of proof by demonstrating:

(1) "that he engaged in protected conduct";

(2) "that the employer was aware of that conduct";

(3) "that the employer took some adverse action against him"; and

(4) that "protected activity was the likely reason for the adverse action."

The first element as stated is not in complete accord with the statute. It suggests that an employee, before gaining the protection of the Act, must take positive action of some sort ("engage in protected conduct"). Admittedly, the Act describes what may be termed "protected conduct": commencing a proceeding under the Act or the Atomic Energy Act of 1954; testifying in such proceedings; or participating in such proceedings. Contrary to the implications of the Dartey test, however, an employee need not engage in such conduct before gaining the Act's protection. Under the plain language of the statute, an employee is protected if he is "about to commence," "about to testify," or "about to assist or participate" in a proceeding before the Nuclear Regulatory Commission. See Albert Francis v. Bogan, Inc., 86-ERA-8 (March 21, 1986) (Recommended decision by Administrative Law Judge Paul H. Teitler).

    The elements of a prima facie case were described somewhat differently by the Sixth Circuit Court of Appeals in DeFord v. Secretary of Labor, 700 F.2d 281 (6th Cir. 1983). Under the test enunciated in DeFord, an employee may satisfy the initial burden of proof by demonstrating the following:

"(1) that the party charged with discrimination is an employer subject to the Act;

(2) that the complaining employee was discharged or otherwise discriminated against with respect to his compensation, terms, conditions, or privileges of employment; and

(3) that the alleged discrimination arose because the employee participated in an NRC proceeding under either the Energy Reorganization Act of 1974 or the Atomic Energy Act of 1954, as amended."

DeFord, 700 F.2d at 286. The third element of the Sixth Circuit's test is similar to the Secretary's test in that it suggests that an employee, before gaining the Act's protection, already must have taken positive action of some sort. Combining the Dartey and DeFord tests, and clarifying the reference to NRC proceedings, I find that an employee may satisfy the initial burden of establishing a prima facie case by demonstrating the following:

(1) That the employer is subject to the Act.

(2) That the employer took adverse action against the employee.

(3) That the likely reason for the adverse action was the fact that the employee commenced, testified in, or participated in an NRC proceeding; or was about to commence, testify in, or participate in an NRC proceeding.

An employee may satisfy the third element by presenting evidence of a sequence or pattern of suspicious circumstances from which it reasonably may be inferred that the adverse action taken against the employee was unlawfully motivated. See Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159, 1162 (9th Cir. 1984).

    The parties have stipulated that Baldwin Associates is an employer subject to the Act. There is no question that Baldwin Associates, through the Manager of its Quality and Technical Services branch, took adverse action against Hale by discharging her. The issue is whether Baldwin Associates' discharge of Hale was unlawful.

    Hale met with representatives of the Nuclear Regulatory Commission on three occasions during her employment with Baldwin Associates. The first two contacts involved problems relating to the storage of materials (1981) and the use of pink paint as a means of marking materials (1982). There is no indication that the NRC acted upon the concerns expressed by Hale during these contacts. The last contact involved the alleged invalidation of nonconformance reports. Hale brought this charge before the NRC in February 1984; as a result of the charge, the NRC discovered a regulatory violation by Baldwin Associates in June 1984. A year elapsed before Hale's termination. The timing of this sequence of events suggests that Hale's contacts with the NRC were not factors in Baldwin Associates' decision to discharge Hale. Indeed, there is no evidence that Baldwin Associates, at the time of Hale's termination, was aware that Hale had ever contacted the NRC. Although the SafeTeam notified Baldwin Associates of Hale's concerns regarding the use of pink paint, there is no evidence that Baldwin Associates was aware that Hale had brought these concerns to the NRC before approaching the SafeTeam. For these reasons, I find that a connection between Hale's actual contacts with the NRC and her subsequent termination may not be inferred.

    The record suggests two other possibly unlawful reasons that may have motivated Baldwin Associates to discharge Hale. These reasons are (1) that Hale reported problems regarding the use of pink paint to the SafeTeam; and (2) that Baldwin Associates feared that Hale would report the pink paint problem to the Nuclear Regulatory Commission. These reasons involve overlapping evidence. Accordingly, I will discuss these reasons together.

    The SafeTeam is not a government entity. Like Baldwin Associates, it is affiliated with Illinois Power Company. For this reason, safety complaints filed with the SafeTeam may be considered internal complaints. In Brown & Root, Inc. v. Donovan, 747 F.2d 1029 (5th Cir. 1984), the United States Court of Appeals for the Fifth Circuit ruled that the filing of internal safety complaints is not protected by the Act. The Courts of Appeals for the Tenth, Ninth, and Second Circuits have taken a contrary position. See Kansas Gas & Electric Company v. Brock, 780 F.2d 1505 (10th Cir. 1985); Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159 (9th Cir. 1984); Consolidated Edison Company of New York, Inc. v. Donovan, 673 F.2d 61 (2d Cir. 1982). The Secretary agrees with these latter

courts that the filing of an internal safety complaint is a protected activity. See Kansas Gas & Electric Company, 780 F.2d at 1511 (discussing the Secretary's position). The United States Court of Appeals for the Seventh Circuit, in which this case arose, has not addressed the issue.

    The Fifth Circuit's construction of the Act in Brown & Root takes no cognizance of the fact that the filing of an internal complaint often precedes the filing of a complaint with the Nuclear Regulatory Commission. The instant case is illustrative. Richard W. Greer, the Manager of Quality and Technical Services, testified that he preferred inspectors' reporting problems to supervisors or the SafeTeam before reporting the problems to the NRC. Hale testified that at s me time in the future, if necessary, she would have reported the pink paint problem to the NRC rather than the SafeTeam because she already had reported the problem to the latter organization. Under the Brown & Root court's narrow interpretation of the Act, employers could with impunity identify and discharge safety-minded inspectors before they had an opportunity to file complaints with the NRC by establishing an internal procedure for filing safety complaints. This result would be contrary to the plain language of the statute, which protects employees who are "about" to commence, testify in, or participate in an NRC proceeding. For this reason, in accordance with the Secretary's position, I find that the Act protects the filing of internal complaints. The legislative history of the Act, as explained by the Tenth Circuit Court of Appeals in Kansas Gas & Electric Company, supports this conclusion. See Kansas Gas & Electric Company, 780 F.2d at 1510-13.

    The record contains some circumstantial evidence supportive of an inference that Baldwin Associates unlawfully discharged Hale because: (1) Hale reported the pink paint problem to the SafeTeam; or (2) Baldwin Associates feared that Hale was about to report the pink paint problem to the Nuclear Regulatory Commission. The circumstances supporting this inference are as follows:

    1. From 1981 to October 1984, when Hale was appraised as "average," Baldwin Associates viewed Hale's work as satisfactory.

    2. In November 1984, Hale reported the pink paint problem to the SafeTeam.

    3. Despite a promise of confidentiality, the SafeTeam conveyed Hale's concerns and identity to Richard Greer, Assistant Manager of Quality and Technical Services.

    4. Greer admittedly feared that Hale might interfere with the licensing of the power plant. One of the apparent purposes of Greer's meeting with Hale, in December 1984, was to ascertain Hale's intentions.

    5. The incident of alleged intimidation by Hale's supervisor John Karl and craftsman Roger Warfield resulted in an investigation. During this investigation, on May 3, 1985, Larry Osborne, Manager of Quality and Technical Services, met with Hale. Osborne noted that Hale was hostile to management and seemed to be on a "crusade."

    6. After this meeting, Osborne asked Karl and Don Rogers, the night-shift supervisor, to watch Hale and to alert him to problems involving Hale.

    7. Shortly thereafter, on May 17, 1985, the incident involving Hale's temporary refusal to complete a "hot" traveler occurred. Karl reported the incident as an act of insubordination and asked inspector Michael Cherry, who witnessed the incident, to prepare a written report.

    8. On June 11, 1985, Hale requested information from engineer Donald Kerwood regarding CAR 222. Noting that CAR 222 would involve review by the Nuclear Regulatory Commission, Kerwood immediately reported Hale's request to J.R. Moskwa, the Senior Piping Mechanical Supervisor.

    9. On June 12, 1985, Hale wrote a memorandum to Moskwa regarding the pink paint problem. As a result of this memorandum, on June 13, 1985, several supervisory personnel met with Hale.

    10. On June 22, 1985, when inspector David Birch complained of Hale's improper handling of a "hot" traveler to Allan W. Lynch, who had replaced Karl as Hale's supervisor, Lynch asked Birch to put his complaint in writing.

    11. On June 25, 1985, Lynch arranged a meeting with Osborne and several other management personnel to discuss Hale.

    12. Two days later, without having issued a written warning, Baldwin Associates discharged Hale.

    The circumstances and sequence of events listed above do not establish that Hale's termination was unlawful. Nonetheless, they are suspicious. They suggest the following scenario: Until Hale reported the pink paint problem to the SafeTeam, Baldwin Associates viewed her as an "average" inspector. Afterwards, according to Greer's own testimony, Hale was viewed as a threat to the licensing of the plant. Several months later, when Osborne discovered what he perceived as Hale's crusading nature and hostility to management, the threat posed by Hale was confirmed. Management then took the unusual steps of watching Hale and gathering written reports. After Hale involved herself once again in the pink paint problem, she was fired at the first opportunity. From the circumstances and sequence of events numbered above, I find this scenario reasonably inferrable. The conclusion follows that Baldwin Associates discharged Hale because it feared that the inspector was "about" to report the pink paint problem to the Nuclear Regulatory Commission. Without finding that the evidence mandates this conclusion, I find that Complainant has presented sufficient circumstantial evidence to satisfy her burden of establishing a prima facie case of unlawful discrimination.

    Under the test enunciated by the Secretary in Dartey v. Zack Company of Chicago, 82-ERA-2 (1983), the employee bears the burden of establishing a prima facie case of unlawful discrimination. The burden then shifts to the employer to offer legitimate, nondiscriminatory reasons for the adverse action taken against the employee. At the time of Hale's termination, Baldwin Associates alleged that the decision to terminate Hale was based upon the fact that she was "[u]nable to perform assigned duties." Larry Osborne, who made the decision to discharge Hale, elaborated upon this reason at the hearing:

I meant that [Hale] was not performing the inspections assigned. She was getting help from other inspectors or from her supervisor to perform them, and ... she continued to spend an awful lot of time--an excessive amount of time reviewing procedures that she had already

qualified on and reviewed, and the incident in the training class where she indicated that she did not want to be in the training and she was only there because we told her to go, led up to my conclusion that she couldn't do the work and she was unwilling or unable to be trained to do it.

    Adverse action for the reasons cited by Osborne is not prohibited by the Act. If these were the only reasons for Hale's discharge, no violation of the Act occurred. The following circumstances support the inference that the reasons offered by Osborne were, in fact, the actual reasons for Hale's termination:

1. There is no evidence that Hale was subjected to particular scrutiny prior to the April 1985 incident of alleged intimidation by John Karl and Roger Warfield.

2. By filing the charge of intimidation, Hale herself prompted the ensuing investigation by management personnel.

3. After investigating the incident, John Lashbrook reported to Osborne that Hale's reaction to the incident was reasonable. He also reported, however, that Hale did not face an actual threat of violence by Warfield and that Karl's handling of the incident, although clumsy, did not represent deliberate intimidation. Lashbrook's report is rational, and Osborne's adoption of Lashbrook's conclusions was reasonable.

4. During the investigation, Karl reported to Osborne that Hale had developed a tendency to avoid some work by claiming to need additional training. Hale herself admitted to Osborne that she had avoided a particular job in the fabrication shop by lying to Karl. Under the circumstances, Hale's reluctance to work in the fabrication shop was not unreasonable; however, in

light of Lashbrook's report that Hale did not face an actual threat of violence in the fabrication shop, Osborne's directive to Hale that she was expected to perform assigned work also was not unreasonable.

5. In light of Karl's report regarding Hale's tendency to avoid some work and Osborne's personal confirmation of the accuracy of that report, Osborne did not act unreasonably by asking Karl and Rogers to watch Hale.

6. The testimony of Lynch and Cherry confirm the fact that Hale had a tendency to avoid some work.

7. In May 1985, Karl reported to Osborne that Hale temporarily had refused to complete a "hot" traveler. Karl characterized Hale's conduct as insubordination. Osborne reasonably could view this incident as an indication that Hale had not heeded his warning that assigned work must be performed.

8. Later that month, instructor Gloria Winn reported to LaMar Palmer, the Project Training Manager, that Hale had disrupted a training session. Palmer sent a written complaint to Dean Arnold, Manager of Quality Control. The complaint suggested that Hale's behavior had caused three inspectors to fail the post-class test. Osborne, who received a copy of the complaint, told Lynch to tell Hale that "this kind of activity couldn't be tolerated." In light of the seriousness of the complaint, Osborne reasonably could suspect or conclude that Hale was a disruptive force in the workplace.

9. On June 22, 1985, after holding a particular traveler for 1-2 hours, Hale gave the traveler to inspector Michael Beacraft. Earlier that evening, Beacraft had explained to Hale how to handle the traveler. When passing the traveler to Beacraft, Hale did not mention that it was the same traveler he had explained to her. Under these circumstances, it was not unreasonable for Beacraft to become upset for having to perform another inspector's work. Furthermore, it was not unreasonable or unnatural for Beacraft, on June 24, 1985, to report the incident to Lynch, Hale's supervisor.

10. Also on June 22, 1985, Hale returned a "hot" traveler to

the acting supervisor after holding it for 1 1/2 hours without action. The acting supervisor reassigned the traveler to inspector David Birch, who performed the work. Under these circumstances, it was not unreasonable for Birch to become upset and to report the incident, on June 24, 1985, to Lynch.

11. On June 24, 1985, Lynch was confronted with reports of two separate incidents involving Hale's avoidance of work. These reports confirmed Lynch's own observations. Under these circumstances, in light of Osborne's instructions to report incidents involving Hale, it was not unreasonable for Lynch to arrange a meeting with Osborne and other management personnel for the purpose of discussing Hale.

12. On June 25, 1985, Lynch reported the incidents of June 22 to Osborne and other management personnel. Lynch described Hale as a source of dissension and animosity. In light of the ill feelings expressed by Beacraft and Birch, this description was probably accurate. In light of Lynch's report and Hale's past history, Osborne did not act unreasonably by requesting a formal evaluation of Hale.

13. Lynch reported to Osborne that Hale had developed a pattern of avoiding work by sometimes asking for on-the-job training and at other times just denying the ability to do the job. The incidents of June 22 confirmed this conclusion. Under these circumstances, it was not unreasonable for Osborne to conclude that "Hale had not gone back to making the inspections as I instructed her to, and that she was disrupting the other inspectors."

    As a result of the situation involving Karl and Warfield, Hale came under scrutiny by management. In subsequent weeks, Osborne received credible reports that Hale had developed a tendency to avoid work and that she had become a disruptive force. Oral warnings (following the Warfield incident and the trainingclass incident) did not effect an improvement in Hale's conduct. Accordingly, Osborne decided to terminate Hale for being unable or unwilling to accept work assignments and for disrupting the work of other inspectors. On the bases

of the circumstances and sequence of events listed above, I find Baldwin Associates' asserted reasons for discharging Hale supported by substantial evidence and genuine.

    Assuming that an employer's asserted reasons for taking adverse action against an employee are not discriminatory in a manner prohibited by the Act, the employee bears the burden of demonstrating that the asserted reasons are pretextual. Dartey v. Zack Company of Chicago, 82-ERA-2 (1983). Complainant has failed to meet this burden. Indeed, as discussed supra, the evidence indicates that Baldwin Associates' asserted (and lawful) reasons for discharging Hale were genuine.

    Despite the foregoing, a violation of the Act may be found if the trier of fact concludes that both lawful and unlawful reasons motivated an employer's decision to take adverse action against an employee. In such "dual motive" cases, the burden shifts to the employer to establish that the adverse action would have been taken even in the absence of the unlawful reasons. Id.

    The record contains some circumstantial evidence suggesting a connection between Hale's termination and her involvement in the pink paint problem. As discussed supra, this evidence is sufficient to establish a prima facie case of unlawful discrimination. For the reasons discussed below, however, I find that Hale's involvement in the pink paint problem played no part in Baldwin Associates' decision to terminate her.

    1. The Warfield incident prompted the scrutiny of Hale's behavior that finally resulted in the inspector's termination. The pink paint problem played no part in the Warfield incident.

    2. Larry Osborne, who made the decision to terminate Hale, testified that Hale's involvement in the pink paint problem played no part in his decision. Osborne was a credible witness who no longer works for Baldwin Associates.

    3. The evidence indicates that management viewed the pink paint problem seriously and responded positively to Hale's expressed concerns. There is no evidence, moreover, that the problem was not under control at the time of Hale's termination or that management, at the time of Hale's termination, feared the

involvement of the Nuclear Regulatory Commission.

    4. At the time of his decision to terminate Hale, Osborne faced the following facts: (1) by her own admission, Hale had avoided a particular job shortly after the Warfield incident; (2) according to Karl, Hale had developed a tendency to avoid some work; (3) according to Karl, Hale temporarily had refused to complete a "hot" traveler, (4) according to instructor Gloria Winn, Hale had disrupted a training session; (5) according to two angry inspectors, Birch and Beacraft, Hale had avoided particular jobs and thereby forced them to complete her work; and (6) prior to the incidents involving Birch and Beacraft, Hale had received two oral warnings. Each charge against Hale tended to confirm the prior charge. The charges were of sufficient seriousness to justify Osborne's decision to terminate Hale. Arguably, Osborne's decision not only was justified but was compelled by the circumstances. For this reason, I find that there is no reason to suspect a "dual motive" behind Osborne's decision.

    5. Winn, Birch and Beacraft were not management personnel. The charges they brought against Hale were not solicited by management personnel, although Lynch asked Birch to put his charge in writing. The charges against Hale cannot be viewed as mere concoctions by management personnel.

    These considerations lead me to the conclusion that Hale's involvement in the pink paint problem played no part in Baldwin Associates' decision to terminate Hale. I accept Osborne's explanation that he made the decision to discharge Hale because (1) she was unable or unwilling to accept assignments; and (2) she had become a disruptive force in the workplace. The Act does not prohibit adverse action against an employee for these reasons. Accordingly, I recommend that the Secretary adopt the following Order.